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apartment after they were stabbed; and he attempted to help the victims. But as police arrived, and realizing he was the only person at the scene, with the victim’s blood transferred onto his clothing, he panicked and fled. His fears quickly came to fruition. A police officer spotted Payne as he ran from the building, and he was the sole focus of the investigation from that point on. He was arrested within hours, and despite asserting his innocence, police failed to meaningfully investigate any of the other suspects. The real murderer has never been caught. DNA testing, which was unavailable at the time of Mr. Payne’s trial and has not been performed any time since, could provide scientific proof of the assailant’s identity and exonerate him. Mr. Payne now faces a December 3, 2020 execution date having never had a chance to access DNA testing capable of proving his innocence. Mr. Payne previously sought testing under the DNA Act and was denied based on the Tennessee Supreme Court’s decision in Alley v. State, 2006 WL 1703820 (Tenn. Crim. App. 2006), which had held that the DNA Act could not be used for testing to demonstrate a convicted person’s innocence by linking crime scene evidence to a known third-party in the state and federal convicted offender DNA databases. The Alley decision was subsequently abrogated by the Tennessee Supreme Court in Powers v. State, 343 S.W.3d 36, 44, 59 (Tenn. 2011), which recognized that Tennessee’s DNA Act has twin purposes of aiding the exoneration of the wrongfully convicted and identifying the actual perpetrators of serious crimes. Importantly, in Powers, the Tennessee Supreme Court also held that courts must presume that the results of DNA testing will favor petitioners like Mr. Payne in determining whether post- conviction test results would be material to innocence in a given case. “‘[T]he trial court should postulate whatever realistically possible test results would be most favorable to [the petitioner] in determining whether he has established’ the reasonable probability requirement.” 343 S.W.3d at 51 (quoting State v. Peterson, 836 A.2d 821, 827 (N.J. Super. Ct. App. Div. 2003)). “Realistically - 2 - possible” DNA test results include a range of results, including the possibility that testing will not only fail to identify the petitioner’s DNA on the item tested but will also simultaneously identify the DNA profile of a known individual convicted of a similar crime in the CODIS database. Id. at 57–58; State v. Nelson, W2012-00741-CCA-R3CD, 2014 WL 295833, at *7 (Tenn. Crim. App. Jan. 27, 2014). Mr. Payne was convicted of a brutal crime in which the assailant engaged in a prolonged, close-range violent confrontation with the victims who he collectively stabbed over fifty times. The circumstances of the murder, condition of the crime scene, and presence of over forty defensive wounds support that a post-conviction re-examination of the evidence could identify DNA belonging to the assailant. Recent exonerations underscore the ability of DNA testing to demonstrate innocence in cases like Mr. Payne’s, where the wrongly convicted person innocently came upon the crime scene and fled out of fear. For example, a man named Clemente Aguirre was exonerated twelve years after being convicted of the stabbing murder of his neighbors and sentenced to death in Florida. Aguirre, like Mr. Payne, discovered the crime scene and was convicted in part because blood from the victims had transferred onto his clothing. Aguirre’s DNA was also located on evidence he handled at the crime scene. In spite of this significant circumstantial evidence, Aguirre was exonerated in 2018 when he was excluded from drops of blood left at the crime scene, and the DNA identified the real perpetrator.1 Mr. Aguirre’s exoneration, and those of several other individuals who were wrongfully convicted in cases similar to Mr. Payne’s are discussed in further detail in Section IV.C.1, infra. 1 Mr. Aguirre became the 164th wrongfully convicted death-row prisoner to be exonerated in the United States since 1973. - 3 - Ordering testing here will satisfy both purposes of the DNA Act. As Mr. C. Alan Keel explains in his accompanying expert affidavit, more than a dozen pieces of evidence from the crime scene—including a bloody comforter, bedsheets, and pillow only first provided to the defense in December 2019—is capable of scientifically resolving Mr. Payne’s innocence claim. Post-conviction testing has the potential to yield DNA belonging to the assailant that could exclude Mr. Payne and identify the actual assailant by linking evidence to a third party through a search in the CODIS database and/or comparison to a known individual. This is particularly important in this case. There are multiple alternative suspects, including (i) a man Mr. Payne saw fleeing the area with blood on his shirt just before he discovered the victims, and (ii) the adult victim’s abusive ex-husband. If a DNA profile extracted from the crime scene evidence matched those alternative suspects—or another as-of-yet unknown individual—it would be powerful evidence that the account Mr. Payne has told for the last thirty years is true. In addition to DNA testing, Mr. Payne seeks to search the latent fingerprints recovered during processing of Ms. Christopher’s home, and any other fingerprints that can be reasonably recovered from items in evidence, against the Federal Bureau of Investigations’ (“FBI”) Next Generation Identification (“NGI”) fingerprint database and the Tennessee Bureau of Investigation’s (“TBI”) Automated Fingerprint Information System. NGI, which came into use in 2014, utilizes Advanced Fingerprint Identification Technology (“AFIT”), which include a new fingerprint-matching algorithm that has improved matching accuracy from 92 percent to more than 99.6 percent, and enables latent images to be compared against the criminal, civil, and Unsolved Latent File (ULF) repositories in a matter of minutes.2 Because of these advancements, the FBI’s 2 FBI, Next Generation Identification (NGI), https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi (last visited July 20, 2020); FBI Biometrics Specifications, What We Do, https://www.fbibiospecs.cjis.gov/Home/Background (last visited July 20, 2020). - 4 - Criminal Justice Information Services Division recommends latent fingerprint images submitted prior to 2013 be resubmitted for a search in the NGI system.3 Just last year, in Louisiana, a man in his thirty-seventh year of a life sentence for a 1982 home invasion rape was exonerated after a search in the fingerprint database—which took less than eight hours—identified prints left at the crime scene as belonging to a serial offender, who had committed at least five other similar crimes in the area.4 Mr. Payne first sought access to forensic testing to demonstrate his factual innocence fourteen years ago. Since that time, new physical evidence from the crime scene has become available for testing, screening and testing technology has significantly advanced, and the Tennessee Supreme Court has clearly stated that petitioners like Mr. Payne are entitled to post- conviction testing and a search of the CODIS database to obtain evidence of third-party guilt. The forensic testing that Mr. Payne seeks can be performed in less than 60 days and is capable of demonstrating, what he has consistently maintained for three decades: that he is innocent. The Court should immediately order the requested testing. FACTUAL BACKGROUND In 1988, Mr. Payne was convicted of the murder of Charisse and Lacie Christopher, and the stabbing of Nicholas Christopher. The three victims were found on the kitchen floor of their apartment. Charisse Christopher, 28, sustained 42 direct knife wounds to her chest, abdomen, neck, head and right thigh and 42 defensive wounds to her hands and arms. See Ex. 1, Trial Tr. Vol. IV, Testimony of Richard Harruff at 485; Ex. 2, Trial Tr. Vol. IV, Testimony of Joseph 3 FBI, Next Generation Identification (NGI), https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi (last visited July 20, 2020). 4 The Innocence Project, Match in National Fingerprint Database Establishes Innocence of Baton Rouge Man After 36 Years in Prison https://www.innocenceproject.org/fingerprint-database-match-establishes-archie-williams- innocence/ (last visited July 20, 2020). - 5 - Zvolanek at 474. Charisse’s two-year-old daughter Lacie, sustained nine stab wounds to her chest, abdomen, back and head. See Ex. 1, Trial Tr. Vol. IV, Testimony of Richard Harruff at 490; Ex. Trial Tr. Vol. IV, Testimony of Joseph Zvolanek at 475. Charisse’s three-year-old son, Nicholas, who survived, sustained multiple abdominal stab wounds and lacerations on his neck, leg, hands and arms. See Ex. 2, Trial Tr. Vol. IV, Testimony of Joseph Zvolanek at 475; Ex. 3, Trial Tr. Vol. VI, Testimony of Sherman Douglas Hixson at 822-824. Despite the indications that this could have been a crime of rage committed by someone close to the victim, police focused exclusively on Mr. Payne, who was the boyfriend of the victims’ neighbor and who found the victims’ bodies. But, nothing in Mr. Payne’s history suggests he would commit such a crime, and he had no motive to do so. At trial, prosecutors advanced a theory that the day of the crime, Mr. Payne had taken drugs, was looking for sex, entered the Christophers’ apartment to make sexual advances toward Charisse Christopher, and attacked and killed her when she rebuffed him. See Ex. 4, Trial Tr. Vol. IX, State’s Closing at 1350-51. As detailed below, this theory was entirely speculative, and other individuals, who were not thoroughly investigated, possessed motives and opportunity to harm the victims.

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